The following case is an excellent example of the distinction between the arguments of “proximity” and “fairness, just and reasonable”: Lord Reed promulgated the lead judgment for the majority of the Supreme Court. As this case falls within the established categories of actions for negligence against public authorities in general and the police in particular, the question whether police officers have a duty of care must be assessed in the light of the principles established by the authorities in relation to these categories. His Lordship further concluded that, since this case fell within fixed classes, the Court of Appeal had erred in applying the three-step test to this case. St Cross BuildingSt Cross RoadOxford, OX1 3ULUnited Kingdom The wheel of this story continues to move. As Bokhary PJ noted in Luen Hing Fat: Judgement: Lord Wilson (with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agree), Lord Wilson rendered the guiding judgment that the rest of his lordships agreed. After review by the authorities, Lord Wilson concluded that, in actions for negligent misrepresentation causing economic loss, whether the defendant owed a duty of care to the plaintiff would normally depend on whether the defendant had accepted responsibility for his testimony before the plaintiff. In order to do so, it was necessary to determine whether it was reasonable for the defendant to rely on the plaintiff`s testimony and whether the plaintiff should have foreseen that the defendant would rely on that statement. Since the House of Lords decision in Caparo Industries v. Dickman in 1990, lawyers and judges considering whether a defendant should exercise tort due diligence often structured their arguments and judgments according to the three-step test they believed was prescribed in this case: (i) foreseeability; (ii) proximity; and (iii) fair, equitable and reasonable. As a result, the court found that counsel for the bank did not exercise due diligence with respect to her testimony on the terms of the transaction. The issue before the Court in Steel was whether a lawyer owed a duty of care to a party to an opposing party`s transaction for a misrepresentation that caused harm to the other party. This point was reiterated in the second decision, another lawsuit against the police: Robinson v Chief Constable of West Yorkshire [2018] UKSC 4.

In a judgment rendered prior to the decision in Michael [2014] EWCA Civ 15, the Court of Appeal held that “the Caparo test applies to all claims in modern negligence law.” At the Supreme Court, Lord Reed (with whom Baroness Hale and Lord Hodge agreed) disagreed. He said: “The assertion that there is a Caparo test that applies to all claims in modern negligence law and that, therefore, the court will only impose a duty of care if it considers it fair, just and reasonable to do so on the basis of the particular facts is false.” Lord Reed wrote in Robinson that the so-called Caparo test is not a test in any situation. It is a mistake to believe that he meant that the Caparo test was useless only in cases with precedent and that it was useful in new circumstances. He believes that the three-part test as a test is useless in all situations. The third decision is NRAM Ltd v Stahl [2018] UKSC 13. The main judgment was delivered by Lord Wilson. He noted that the three-step test stems from Lord Griffish`s speech in Smith v. Eric S. Bush [1990] 1 AC 831. Instead of establishing the triple test, Caparo explained that it had no practical use. Lord Wilson referred to the speeches of Lord Bridge and Lord Oliver (the latter suggesting that “the three proposed elements of the so-called test were generally facets of the same thing, and that the search for a single formula meant the continuation of a will). Lord Wilson then referred to the relevant parts of Lord Toulson`s judgment in Michael and Lord Reed in Robinson.

HOME: www.law.ox.ac.uk/people/donal-nolan There were two reasons why there was no duty of care. First, proximity was insufficient due to the intrusive behavior of a third party (the serial killer). Second, it is not “fair, just and reasonable” because a finding of a legal duty in these circumstances would have a distorting and detrimental effect on police action against crime. CN v Poole BC [2019] UKSC 25, [2019] 2 WLR 1478 [30] (Lord Reed DP) Nevertheless, Bokhary PJ`s conditional approval of the three-step test can be seen as an endorsement of a methodology for dealing with due diligence issues, without altering the substantive assessment that the court must make when deciding these issues. On the other hand, the Supreme Court`s emphasis in Robinson and Steel on the progressive development of the law in new cases may be seen as a substantive conclusion of the circumstances in which the Court should recognize an obligation in new situations. From this perspective, the incremental approach advocated in Robinson and Steel may well have an impact in Hong Kong, even if the three-step test is not further examined by the Supreme Court of Appeal. I think it must be recognized that the search for a single formula that serves as a general liability test involves the continuation of a will. The fact is. The attempt to establish a general principle that will determine responsibility in an infinite variety of circumstances does not serve to clarify the law, but only to hinder its development. In the Luen Hing Fat case, Bokhary PJ, with whom all his lordships agreed, adopted the “Caparo approach”, i.e. the three-step test. However, it is important to consider His Lordship`s qualifications when accepting the three-step test.

His Lordship referred to statements made in cases subsequent to Caparo, according to which the elements of the three-step test were nothing more than labels under which the court weighed the pros and cons of imposing an obligation, and that a general formula, while helping to organize thought, could not give answers. Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, [2019] AC 831 “Where the question of whether due diligence has not yet been decided, courts will consider the narrowest analogies of existing law in order to preserve consistency of the law and avoid inappropriate distinctions. They will also assess the grounds for and against the imposition of liability to determine whether the existence of a duty of care would be fair and appropriate. 26 pages Published: Jul 7, 2019 Last revised: Sep 3, 2020 Based on its upholding by the Supreme Court of Appeal in the Luen Hing Fat case, the three-step test is likely to remain part of Hong Kong`s legal landscape, at least until the Court of Final Appeal has the opportunity to reconsider this issue. When courts use these labels, proximity arguments are generally related to the nature of the harm suffered by the plaintiff; pure economic loss, nervous shock; omission of law; or intentional behaviour. “Fair, equitable and reasonable arguments” generally concern public policy arguments for or against the establishment of a legal obligation. The defendant lawyer had wrongly informed the plaintiff bank`s management that the transaction between her client and the bank involved repayment of the bank`s mortgages on her client`s property. This statement was false.

The bank`s management relied on this statement and, without reviewing the bank`s own records as to the nature of the transaction, made arrangements for the repayment of the bank`s mortgages. Years later, the client went into liquidation and the bank found that his loan was not secured. The bank then brought an action against the lawyer for negligent breach of duty. Lord Reid then referred to Lord Toulson`s “landmark judgment” in the Michael case, in which Lord Toulson stated that “the purpose of the Caparo case was to reject the idea that there is a single test which can be used in all cases to determine whether there is a duty of care. and rather to pursue an approach based in the manner characteristic of the common law on precedent and on the gradual and analogous development of the law. If the three-step test was successful, what is the tort due diligence test? We return to the step-by-step approach set out in Brennan J.`s decision in Sutherland Shire Council v.